Coming on the heels of increased security measures aimed at minorities, Ottawa should reduce, if not prevent, the harm the bill could do.
by Abdul Nakua. Originally published on Policy Options
September 17, 2024
With MPs back in Ottawa for the fall session of the Parliament and with election rumours flying, Bill C-70 is a distant memory to many of them, but its impact will last a long time. Passed in the dying days of the last session, an Act Respecting Countering Foreign Interference is a massive security bill that received royal assent in June.
The controversial legislation creates new criminal offences, grants more power to CSIS, the Canadian Security Intelligence Service, and establishes a mandatory foreign-influence registry despite concerns from civil liberties groups and some politicians about its potential overreach. In total, it introduces amendments to 32 laws.
This bill was the result of a long, politically charged debate about foreign interference in federal elections. The story dominated the headlines via a well-orchestrated campaign of leaks and sensational stories often based on unsubstantiated claims or misconstrued events.
More than 70 stories were published by various media outlets, chiefly the Globe and Mail and Global News, reaching a crescendo when Prime Minister Justin Trudeau established a public inquiry under Quebec Justice Marie-Josée Hogue.
In a report prior to the Hogue inquiry, former governor general David Johnston was extremely critical of these leaks and did not rule out malice.
Leaks obscured a better, more serious approach
Parallel to these media leaks and ensuing coverage, there was a concerted effort to put in motion an agenda for national security that expands the powers of the security agencies.
For example, a 2022 policy paper drafted by the task force on national security of the University of Ottawa’s graduate school of public and international affairs was centred around the narrative that Canada “has neglected national security for decades.”
It argued there is an urgency “to rethink national security” while “revamping the national security framework” to address emerging threats.
This task force was composed of top security experts, including two former directors of CSIS, former national security and intelligence advisers to prime ministers, and four former deputy ministers of national defence and public safety.
The House of Commons special committee on Canada-China relations relied heavily in its interim report in 2023 on the task force report, referencing it 17 times.
It adopted the task force’s broad definition of national security threats and task-force recommendations regarding increasing and normalizing the use of open-source intelligence, and the need for a comprehensive national-security review in Canada.
This included sharing information within government, reviewing outdated legislation, strengthening cybersecurity, protecting economic security and proposing a whole-of-government approach to national security.
While some of these ideas are worthy of a serious public debate, the government missed an opportunity to engage all stakeholders in this important public policy file. It did not even wait for Justice Hogue to complete her inquiry and submit her final report.
Ottawa needs to act on three fronts
Ramming C-70 through Parliament without adequate debate or proper cross-examination has contributed to apprehensions about this bill.
This unease was further exacerbated by the media coverage of foreign interference, which created a climate of suspicion directed at minority groups in Canada and multiculturalism in general. Bill C-70 will only make that worse, coming on the heels of increased security measures, particularly since 9/11, that affect minorities.
This places a greater responsibility on the federal government to reduce, if not prevent, the harm that can result from Bill C-70’s passage. Ottawa needs to address three key areas: increased oversight over security agencies; systemic discrimination and racism; and a recommitment to, and modernization of, Canada’s approach to multiculturalism.
While the legislation passed without much challenge in Parliament and without much public awareness, it is an extremely consequential law because it aims to restructure Canada’s national security systems. Many civil liberty groups raised fears the bill will negatively impact rights protected under the Canadian Charter of Rights and Freedoms.
A foreign influence transparency registry could cause more harm than good
The impact of China targeting its diaspora
Secret law used by security establishment threatens public trust
We must increase confidence in Canada’s security and intelligence enterprise
A coalition of civil liberties groups warned against the risk of increased surveillance, diminished privacy, limits on freedom of expression and freedom of association, undermining due process in the courts through the use of secret evidence, and racial, religious and political profiling.
The International Civil Liberties Monitoring Group, a coalition of Canadian civil society organizations established after the adoption of the Anti-Terrorism Act of 2001, expressed alarm about broadening CSIS’s mandate to collect, analyze and disclose sensitive information to third parties. It said this is particularly alarming for diverse groups and minority rights.
The Centre for Free Expression objected to the bill’s vague language and its potential use “to profile people on political, racial, religious, or nationality grounds.”
Balancing national security with democratic rights has been a challenge for successive Canadian governments.
More than 40 years ago, the McDonald Commission examined the excesses of the RCMP during the turmoil of the 1970s in Quebec in the aftermath of the FLQ crisis.
After four years of deliberations, the commission recommended anchoring Canada’s security arrangements around the “preservation of our democratic system” – i.e., the principle that police and security forces must at all times operate within the ambit of clearly delineated common law or statutory authority.
It is an open question if security agencies ever operated within this maxim, especially after 9/11. The anti-terrorism laws, such as Bill C-36 (2001) and Bill C-51 (2015), enabled a massive expansion of state power without adequate oversight or safeguards by making significant amendments to several pieces of legislation.
This over-securitization led to many undesirable consequences, such as the undermining of fundamental rights and the erosion of freedoms and political rights.
Arbitrary arrests, no-fly lists, security certificates, citizenship revocations, delisting of charitable organizations, increased surveillance and a deterioration of personal privacy are part of the dark legacy of these laws.
More notably, these accesses disproportionately impact Muslims and Muslim organizations. The Arar-10 conference traced the lingering human cost endured by those impacted by the actions of national-security agencies.
It can serve as a reminder that security measures that facilitate human-rights violations, coupled with irresponsible media reporting, can have an indelible impact on individuals, families and the wider community.
The dog-whistle politics of the “barbaric cultural practices” snitch line is another example that can serve as a cautionary note about the social costs of these exclusionary practices within an increasingly hyper-partisan political discourse.
Many Chinese-Canadians are uneasy about the amplification of current narratives around China that favour those who articulate strong opposition to that country’s government while erasing other perspectives within the diverse and large Chinese Canadian diaspora.
They fear the media’s focus on allegations of election interference from Beijing will lead to the marginalization of a large segment of the Chinese-Canadian community.
Senator Yuen Pau Woo, in his remarks commemorating the 100th anniversary of the Chinese Exclusion Act, warned against a misconceived litmus test of disloyalty that could lead to more insidious legislation that can normalize exclusionary practices.
Justice Hogue drew attention in her preliminary report to the disproportionate impact on members of diaspora communities.
Her report said they are likely to experience some of the most harmful impacts such as being discouraged from getting involved in their communities, engaging freely in public discourse, or even discouraging diaspora members from entering politics. She promised to reflect more deeply on this in her final report.
Laws such as Bill C-70 provide enormous discretionary power to government agencies, particularly law enforcement, which are often exercised in secrecy and are potentially arbitrary.
This places a greater responsibility on the federal government to reduce, if not prevent, the harm that can result from this bill. Ottawa needs to address three key areas:
Increasing oversight capacity over its agencies.
In 2015, four former prime ministers and five former Supreme Court justices warned that “given the secrecy around national security activities, abuses can go undetected and without remedy” and advocated strong oversight mandates.
As former dean of Osgoode Law School, Lorne Sossin, now an Ontario Superior Court of Justice, noted: “Oversight is not just a power or authority written in a statute.” Factors such as budgets, staffing, political and administrative culture, empowerment and training are key for executing oversight duties effectively.
There is a growing fear among some civil-liberties groups that oversight processes are often reduced to rubber-stamping government action.
This is further compounded by the reluctance of the courts to provide relief under the Charter even when violations are plausible. A case in point is the Ontario Court’s dismissal in July of the Muslim Association of Canada’s legal challenge against the Canada Revenue Agency, alleging the CRA conducted biased and discriminatory audits of the organization that infringed on the rights of Canadian Muslims.
To restore confidence in the system, the government needs to invest in key capacities to ensure robust oversight regimes, both in word and deed.
Addressing systemic discrimination and racism.
Once institutionalized, racism becomes self-perpetuating. Members of racialized communities are disproportionately disadvantaged by prejudice and bias because of their visibility.
Systemic racism casts its dark shadow over the rules, norms and patterns of behaviour within institutions and agencies.
The RCMP and CSIS have engaged in illegal activities targeting racialized groups from Muslims and refugees to Indigenous Peoples. Canadian Border Security Agency data exposed some of its practices as racial profiling.
Trudeau agreed recently that “systemic racism is an issue right across the country, in all our institutions.” A recent Senate report confirmed that “Islamophobia is present in Canadian society and in many of our institutions.”
The prime minister promised the government would tackle systemic discrimination, but there has been little concrete action. With C-70’s expansion of security mandates, it is even more urgent to address the root causes of systemic discrimination and racism.
Recommitment and modernization of multiculturalism.
Almost two-thirds of Canadians say multiculturalism is an important symbol of Canadian identity, ahead of even hockey. This figure is even higher (78 per cent) among younger Canadians.
Despite its popularity, consecutive governments have failed to articulate a cohesive and unified vision for multiculturalism.
Today, two contested versions of multiculturalism are on a collision course. One vision is premised on the idea that there are many different paths to being a “good” Canadian, while the other is centred around a single standard: conformity with white normativity.
Within the narrow conception of the latter, the measure of a “good” Canadian is proportional to the degree of alignment with this conformity. Minorities, particularly racialized Canadians, are forced continuously to confront this.
The federal government should therefore recommit to multiculturalism and boldly pursue its modernization to reflect the Canada of 2024, not 1971.
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This article first appeared on Policy Options and is republished here under a Creative Commons license.